Skip to content


Daya Ram Vs. Smt. Reshmu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 14 of 1964
Judge
Reported inAIR1966HP36
ActsTenancy Laws; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 - Sections 9, 10, 11, 12, 20 and 25; ;Code of Civil Procedure (CPC) , 1908 - Section 141 - Order 1, Rule 10; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Rules, 1955 - Rule 3
AppellantDaya Ram
RespondentSmt. Reshmu
Appellant Advocate Harish Chander, Adv.
Respondent Advocate Sant Ram, Adv.
DispositionAppeal allowed
Cases ReferredTara Chand v. State.
Excerpt:
tenancy - order 1 rule 10 of code of civil procedure, 1908 - appellant proprietor of land - x husband of respondent applied for acquisition of proprietary rights in land on allegation that he was tenant of land - application opposed by appellant - respondent filed application under order 1 rule 10 for impleading her as co-applicant before compensation officer - application allowed by compensation officer - whether provisions of order 1 rule 10 were applicable to proceedings before compensation officer - on basis of precedents it had been held that compensation officer is not a court and provisions of order 1 rule 10 not applicable to proceedings before him - order under order 1 rule 10 for impleading respondent as co-applicant with x not competent and liable to be rejected. - .....comprised in khasra nos. 12 min, 17, 19, 21 and 78, situated in village mohur. lala, husband of shrimati reshmu respondent, had applied, under section 11 of the himachal pradesh abolition of big landed estates and land reforms act (hereinafter referred to as the abolition act) for acquisition of proprietary rights in the land on the allegation that he was a tenant of the land. daya ram appellant had opposed the application and had filed objections against the acquisition of proprietary rights by lala. daya ram had denied that lala was a tenant of the land. this plea was that by virtue of a compromise entered into between lala and himself, on the 28th november. 1952, shrimati reshmu had become the tenant of the land. after the filing of the objections by daya ram appellant, shrimati.....
Judgment:

Om Parkash, J.

1. This appeal is directed against an order of the learned District Judge, Bilaspur, whereby an appeal, against the order of Compensation Officer. Bilaspur, was allowed.

2. Daya Ram appellant was proprietor of land, measuring 10 Bighas and 12 Bis was, comprised in Khasra Nos. 12 Min, 17, 19, 21 and 78, situated in village Mohur. Lala, husband of Shrimati Reshmu respondent, had applied, under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act (hereinafter referred to as the Abolition Act) for acquisition of proprietary rights in the land on the allegation that he was a tenant of the land. Daya Ram appellant had opposed the application and had filed objections against the acquisition of proprietary rights by Lala. Daya Ram had denied that Lala was a tenant of the land. This plea was that by virtue of a compromise entered into between Lala and himself, on the 28th November. 1952, Shrimati Reshmu had become the tenant of the land.

After the filing of the objections by Daya Ram appellant, Shrimati Reshmu made an application, under Order 1, Rule 10 C P. C. for impleading her as a co-applicanl with Lala. Shrimati Reshmu had alleged, in the application, that she was a tenant of the land, in dispute, and was entitled to acquire proprietary rights in it. The application was opposed by Daya Ram appellant. The Compensation Officer allowed the application and impleaded Shrimati Reshmu as a co-applicant with Lala. But he rejected the application for acquisition of proprietary rights on the ground that the entries in the revenue records did not support the claim of Shrimati Reshmu.

3. Aggrieved by the order of the Compensation Officer. Lala and Shrimali Reshmu had gone up in appeal to the learned District Judge. It was contended, on their behalf, that the Compensation Officer was in error in dismissing their application for the acquisition of proprietary rights On behalf of Daya Ram appellant, it was urged before the learned District Judge, that the provisions of Order 1, Rule 10 C.P.C., were not applicable to proceedings, before the Compensation Officer and that he erred in impleading Shrimati Reshmu respondent as a co-applicant with Lala.

It was, further urged, on behalf of Daya Rain appellant, that even if it be proved that Shrimati Reshmu was a tenant of the land, she could not have been granted proprietary rights as she had not tiled any application under Section 11 of the Abolition Act. on the prescribed form. The learned District Judge accepted the contention, put forth, on behalf of Daya Ram appellant, that the provisions of Order 1, Rule 10 C.P.C., were not applicable to proceedings before the Compensation Officer and that Shrimati Reshmu could not be impleaded as a co-applicant with Lala But he treated the application, filed under Order 1, Rule 10 C. P. C., by Shrimati Reshmu as an application, under Section 11 of the Abolition Act, holding that the provisions laying down that the application for acquisition of proprietary rights should be in the prescribed form were only directory and not mandatory

The learned District Judge, further, held that it was proved on the record that Shrimati Reshmu was tenant of the land in dispute and was, therefore, entitled to acquire proprietary rights. He allowed the appeal, so far as Shrimati Reshmu was concerned, and granted her proprietary rights in the land, in dispute. He directed the Compensation Officer to determine the compensation, payable to Daya Ram appellant, the proprietor, and issue the necessary certificate of ownership in favour of Shrimati Reshmu.

4. Daya Ram has come up in appeal to this Court against the order of the learned District Judge. Before coming to the merits of the appeal, a preliminary objection, raised on behalf of Shrimaii Reshmu respondent, may be disposed of It was contended, by the learned counsel for Shrimati Reshmu respondent, that after the passing of the order under appeal, the Compensation Officer had issued the certificate of ownership to Shrimati Reshmu and that as Daya Ram appellant had not filed any appeal against the older granting the certificate, the present appeal, against the order of the District Judge, had become incompetent.

The preliminar v objection lacks merit. The proprietary rights, to Shrimati Reshmu, were granted, by the learned District Judge, and not by the Compensation Officer The Compensation Officer had issued the certificate of ownership in favour of Shrimati Reshmu in pursuance of the order of the District Judge The issue of the certificate, by the Compensation Officer, was merely a ministerial act. If the order of the learned District Judge granting proprietary rights to Shrimati Keshmu is set aside, the certificate, issued in her favour, will automatically stand cancelled. It was held in Mithoo Shahani v. Union of India, AIR 1964 SC 1536, that if an order of allotment which is the basis on which a grant is made is set aside, it would follow that the grant cannot survive. It was unnecessary for Daya Ram appellant to have lodged an appeal against the issue of the certificate of ownership by the Compensation Officer in favour of Shrimati Reshmu respondent. The non-filing of the appeal does not bar the hearing of the present appeal which has not become incompetent. The preliminary objection is over-ruled.

5. Coming to the merits of the appeal, it was contended, by the learned counsel for Daya Ram appellant, that having held that the provisions of Order 1, Rule 10 C. P. C., were not applicable to proceedings before the Compensation Officer and the application filed by Shrimati Reshmu respondent for impleading her as also-applicant with Lala, was not competent, the learned District Judge erred in treating that application as an application under Section 11 of the Abolition Act, for the acquisition of proprietary rights and granting proprietary rights to Shrimati Reshmu The argument of the learned counsel was that the provisions, laying down that the application under Section 11 of the Abolition Act, should be on the prescribed form were mandatory and that the proprietary rights could not be granted on an application which was not on the prescribed form

On the other hand, the learned counsel for Shrimati Reshmu respondent contended that the Compensation Officer was a Civil Court and the provisions of Order 1, Rule 10 C. P. C., were applicable to the proceedings before the Compensation Officer by virtue of Section 141 C. P. C., and, therefore, Shrimati Reshmu could be impleaded as a co-applicant with Lala. It was, further, contended by the learned counsel, that even if it be held that the provisions of Order 1, Rule 10 C. P. C., were not applicable, the learned District Judge was right in treating the application of Shrimati Reshmu, under Order 1, Rule 10, C. P. C., as an application under Section 11 of the Abolition Act, and granting her proprietary rights, on the basis of that application.

6. The first question, which requires decision in the appeal, is whether the Compensation Officer is a Court at all. What is a 'Court was discussed by Mahajan J., as he then was, af p. 195, AIR 1950 SC 188, Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. His Lordship observed:

'As pointed out in Halsbury's Laws of England, the word 'Court' originally meant the King's Palace but subsequently acquired the meaning of (1) a place where justice was administered, and (2) the person or persons who administer it, In the Evidence Act, it is defined as including all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the Act. There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. However, by agreement between parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court. It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State.'

His Lordship extracted the following quotation, from Cooper v Wilson, (1937) 2 K. B. 309, for explaining the word 'Judicial':

'A true judicial decision presupposes an existing dispute between, two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parlies to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (8) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law '

Let us examine the various provisions of the Abolition Act, relating to the duties and functions of the Compensation Officer, in the light of the principles enunciated above, in order to determine whether the Compensation Officer is a Court.

Section 9(1) of the Abolition Act lays down that the State Government shall appoint Compensation Officers to carry out the purposes of the Act, including partitions, operations in holdings, assessment of compensation and settlement of disputes, between the land-owners and their tenants. Sub-section (2) provides that the Compensation Officer shall be guided by such Instructions as the State Government may issue. Section 10(b) authorizes the State Government to issue instructions for the guidance of Compensation Officers and Section 10(c) authorizes the State Government to cancel or revise any of the orders, acts or proceedings of Compensation Officers other than those in respect of which an appeal lies under the Act.

Section 11 gives power to the Compensation Officer to grant proprietary rights, to a tenant, on payment of compensation, on an application, made to him. Section 12 provides for an appeal to the District Judge, against the order of the Compensation Officer, and a second appeal to the Judicial Commissioner

Section 20 lays down that where any dispute arises between persons claiming compensation, the Compensation Officer shall require them to refer their claims to a competent Civil Court for adjudication. Section 25 invests the Compensation Officer with the powers of a Civil Court, under Civil Procedure Code, for the purpose of administering oaths, taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and material objects Section 105 confers, on the Judicial Commissioner, the powers of revising an order of the District Judge There are other sections in the Abolition Act. which also refer to the Compensation Officer. But those are not material for deciding, whether a Compensation Officer is a Court.

7. The provisions of Sections 10 and 20, set forth above, clearly indicate that the Compensation Officer is not a Court. Under Section 10 of the Abolition Act, the State Government can not only issue instructions to a Compensation Officer, but it can cancel or revise his order, also, The decision of a Compensation Officer may, in a certain case, be guided by extraneous executive instructions and not by his own judgment This militates against a Compensation Officer being a judicial officer and a Court.

It was observed, in B. Rajagopala Naidu v. State Transport Appellate Tribunal, Madras, AIR 1964 SC 1573 that it is of the essence of fair and objective administration of law that the decision of the Judge must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State

The direction, in Section 20 of the Abolition Act, that where any dispute arises between persons claiming compensation, the Compensation Officer shall require them to refer their claims to a competent Civil Court for adjudication also indicates that a Compensation Officer is not a Court. It is true that a Compensation Officer is empowered to conduct an enquiry into certain disputes and that an appeal lies against his order to the District Judge and a second appeal to the Judicial Commissioner. But these facts alone will not make him a Civil Court. It was held in Shell Co. of 'Australia Ltd. v. Federal Commr. of Taxation, 1931 AC 275, that (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision. (2) Nor because It hears witnesses on oath. (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects, (5) Nor because there is an appeal to a Court.

8. It is clear that a Compensation Officer is not a Court. The case of a Compensation Officer is analogous to a Controller, under the East Punjab Urban Rent Restriction Act. A Controller is empowered to decide certain disputes between a landlord and a tenant and is invested with the powers of a Civil Court for summoning and on forcing the attendance of witnesses. An appeal, against his order, lies to an appellate authority and a revision to the High Court. Though, the powers of a Controller and the appellate authority are exercised by Subordinate Judges and District Judges, respectively, yet neither the Controller nor the appellate authority has been held to be a Court. Reference may be made to Tara Chand v. State. 64 Pun LR 1022: (AIR 1962 Punj 555).

9. The Compensation Officer is not ;) Court, and the provisions of the Civil Procedure Code, except to the extent, mentioned in Section 25 of the Abolition Act. are not applicable to proceedings, before him. The application of Shrimati Reshmu respondent, under Order 1, Rule 10 C. P. C., for impleading her as a co-applicant, with lala was not competent and should have boon rejected.

10. The next question is whether the learned District Judge was right in treating the application of Shrimati Reshmu as an application tinder Section 11 of the Abolition Act, for the acquisition of proprietary rights. Rule 3 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Rules provides that an application, under Section 11 of the Abolition Act, shall he made in form L.R.I. That form is appended to the Rules. The prescribed form requires certain particulars to be given. The Abolition Act is of a confiscatory nature. The provisions of that Act and the Rules, framed thereunder, are to he strictly construed The word 'shall' in Rule 3 is to he interpreted as mandatory. The application, under Section 11 of the Abolition Act, for the acquisition of proprietary rights, must be in form L. R. I. The application, filed by Shrimati Reshmu, was not on that form and could not ho treated as an application under Section 11 of the Abolition Act. The learned District Judge was in error in treating that application, under Section 11, and granting proprietary rights to Shrimati Reshmu on the basis of that application. The order of the learned District Judge is liable to be set aside on this ground. In this view of the matter, it is not necessary to decide whether Shrimati Reshmu was or was not a tenant of the land, in dispute.

11. The appeal is allowed. The order of the learned District Judge granting proprietary rights to Shrimati Reshmu respondent is set aside.

12. Lest there be any misapprehension, it is made clear that nothing in the order of this Court will bar Shrimati Reshmu respondent from filing an application on the prescribed form, for the acquisition of proprietaryrights, in the land, in dispute, if she be otherwise entitled to do so.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //